Self-defence is no defence
Monday 04 January 2010 by Jonathan Rayner
Pre-election promises aren’t worth the ballot paper they are written on, so don’t take too seriously the sinister spectacle of Labour and the Tories espousing the same populist cause.
The populist knee-jerk of the moment is the old chestnut of how far a householder can legally go to protect his property and the people living there. We had all this 10 years ago with Tony Martin, the Norfolk farmer who shot and killed a teenage burglar. Thieves had repeatedly targeted Martin’s isolated farm and, although he had been banned from holding a firearm permit, he had acquired a shotgun. One night he heard intruders and, as they ran off, he shot the teenager in the back. He was jailed for life, but released after just five years.
Politicians, policemen and readers of the Daily Mail were outraged that Martin was imprisoned simply for protecting his property. They conceded that the sentence for burglary wasn’t actually death, not yet anyway, but the kid had had it coming and good riddance. The law takes a different view. A householder is allowed to use ‘reasonable’ force in self-defence, it maintains. Shooting someone in the back as they run away, however, does not qualify as self-defence – or even as the ‘reasonable’ use of force.
Martin spent the next few years behind bars, a lesson for everyone with a hankering to become a vigilante.
We are now having the same debate following the imprisonment of the brothers Munir and Tokeer Hussain. A burglar, abetted by accomplices, had tied up Munir and his family and threatened them with knives. The brothers had somehow got free and chased the burglars out of the house and down the road. They had caught one and beaten him senseless with a cricket bat, leaving him brain-damaged. This was not a ‘reasonable’ use of force, the court held. One brother was given 30 months in prison, the other 39 months – light sentences for the serious offence of causing grievous bodily harm.
Innocent men are in prison, some pundits thundered when the sentences were announced. The brothers’ actions arose from the natural and manly impulse to protect loved ones from lowlife scum. They were right to take the law into their own hands.
Labour and the Conservatives, sensing a vote catcher, have both now said they will review the law in such cases if they win the next election. Home secretary Alan Johnson, speaking on the BBC on Sunday, said he was ‘uncomfortable’ with the sentences. His Tory shadow, Chris Grayling, has said much the same.
Despite these pre-election promises, there are unlikely to be significant changes to the law. The two brothers, of course, had every right to be furious that Munir’s wife and children had been threatened by intruders into his home, but a mark of our civilisation is that the business of punishment is left to the due processes of law. The police will investigate, charges will be brought, a judge will direct and a jury will deliberate.
Crazed good guys don’t go around taking out the bad guys. That’s the stuff of Hollywood – or anarchy.
Comments
That is so easy for a
That is so easy for a lawyer/journalist to say. Smug.
So easy [part 2]
I agree entirely with Peter -- shouldn't Jonathan Rayner
think about writing for the Daily Mail rather than the Gazette?
Why should he go write for
Why should he go write for the Daily Mail? He's taking the exact opposite position of the Daily Mail. The Daily Mail thinks these two brothers shouldn't be locked up for what they did. This article goes against that line.
And Jonathan is right. Self-defence in defence of your family or home is "reasonable force" and thus is legal. What these two brothers did though, wasn't self-defence. They maliciously chased the burglars down the road and beat one senseless. If they'd chased him and just caught him, I guess that would've been a citizen's arrest. But taking a baseball bat and causing brain damage is not self defence or a citizen's arrest. It is criminal and so it should be.
over-reaction?
Mr Rayner's thoughts would be a little easier to accept (I have no argument with their literal truthfulness) if the law were effective, but clearly it is not. As long as our legal system treats the first-instance offender and the person who reacts to the offence equally there will not be a great deal of justice about.
Self-Defence
I wonder if Mr. Rayner would be quite so ready to pontificate on the subject were it his family who had been threatened with death or serious injury?
Myself, my family and property suffered more than a decade of harassment, assault, criminal damage and attempted arson from such pond life. The police and other authorities were about as much use as a chocolate wristwatch.
When I attempted to restrain one of these thugs - quite legally - I was arrested, charged and convicted. Fortunately, the appeal judge had more sense than the CPS or police and overturned the conviction, stating that the prosecution should not have been brought at all in the circumstances.
@ John Lockett Ah, the
@ John Lockett
Ah, the classic subjective argument. What difference should it make whether the author of this article were threatened with death or serious injury? That isn't the subject of his article. His point is that the rule of law must prevail. I suppose you're saying 'let's see if you uphold the rule of law when you go through the same thing', but then again that's a mere hypothetical argument and not very helpful. I find your other story more interesting, though. I suppose that despite everything you went through, the justice system DID work.... you were let off.
Self-defence response
James completely misses the point(s). Firstly the system did not work if it failed to protect myself, my family and property effectively for more than a decade.
Secondly, the authorities knew the long history when I was arrested and charged and, in fact originally decided on No Further Action. It was only because the offender (this time) was BME and female that the police and CPS were afraid more of how the matter reflected on themselves rather than on doing justice and reversed themselves to charge and prosecute me.
Finally, the system manifestly did not work in that I was initially convicted on exactly the same evidence that ultimately exonerated me.
What the cases in the above
What the cases in the above article illustrate are when people go beyond self-defence. Chasing someone down the street and beating them senseless goes beyond 'fear of imminent attack' and 'the force used must be proportionate'. Shooting someone as they are fleeing from your property also goes against the boundaries of self-defence.
The reasons why the likes of the Daily Mail et al attack the convictions of these individuals are because of the sense that they are morally blameless. I think the majority of us can understand the anger and frustration of the home owner who is burgled.
In the case of Munir and Tokeer, I am sure the majority will feel sympathy for the situation they and their family were placed in. To be tied up and threatened with knives in their own home, it is hard to sympathise with the vicitms.
But the reality is, when the burglars fled the property, the fear of imminent attack argument diminishes. When the force used results in brain-damage, the force cannot be considered to be reasonable.
The facts of each case carry a lot of mitigation, but not a defence
Did the fear of attack really
Did the fear of attack really diminish just because the burglar fled? I very much doubt it-the burglar (sorry-assaulter) was very likely to return at some stage. Indeed probably imminently!
However, It almost certainly has now in the case regarding Munir and Tokeer. Obviously it did not in the case of John Lockett who made the error of relying on "law and order" for 10 years, only to find that he was the culprit according to the "authorities".
anticipating that the burgler
anticipating that the burgler might return is not an imminent attack. The jury, having been directed by the judge as to 'self-defence' obviously found that they had gone beyond that. These cases illustrate retaliation
No- these cases illustrate
No- these cases illustrate the foolishness of depending on others-especially the "authorities" to help
right of self defence
The problem is that the police have been politicised. Their role is to attack the middle classes, who fall between two stools these days - governments look after the welfare classes for their client vote, and the super rich for their party contributions. As we have seen from their behaviour at the G20 demonstrations and their take up of extra powers that ostensibly were meant to be a response to terrorism, the police are now an arm of the state.
So, it is only to be expected that they will prosecute the home owner in preference to the assailant/ burglar. Will a new Tory government (assuming that they win) change this? The jury is still out on that!